CALGARY — In 2010, an enlightened Ontario judge permitted reporters to use social media during the court appearance of a military officer accused of assaulting and murdering two women.

One might have hoped the judge’s foresight would have moved other judges to do the same, but two years on we’re exactly where we were 10 years ago. The courts, which are undoubtedly one of our most important social institutions, remain largely inaccessible to the public.

Further proof was provided recently by the Canadian Centre for Court Technology, which has crafted a discussion paper outlining “draft guidelines” for the use of “electronic communication devices in court proceedings.” The CCCT is an insider organization comprising justice professionals. Its role is to examine questions around the use of technology in courts from the perspective of the justice system. It is not concerned with journalists’ needs in reporting on the system, even though it should be.

Its draft guidelines advocate allowing electronic devices, such as computers and phones to be used in court — albeit in silent mode — and not only by journalists. The restrictions include an ongoing prohibition on taking video or photos, with audio use being acceptable for note taking but not for presentation to the public.

These guidelines are not aimed specifically at journalists, but would apply to any citizen who enters a courtroom. In part, they concede that access to social media is a genie that has no intention of returning to its lamp.

In other words, there is every likelihood that people are bringing smartphones into courtrooms and texting, tweeting and emailing an audience, whether that audience is a personal network of people or the general public.

From the system’s perspective, the purpose of limiting media in the courtroom is to ensure an accused person receives a fair trial. The complexity of publication bans, use of voir dire — closed applications to determine whether evidence can be introduced in a trial — and rules of evidence are not easily understood. From a journalist’s perspective, it is difficult to effectively cover court proceedings unless you can use the tools you would normally use to convey the story. Taking photos, gathering video and sound and then disseminating it is central to journalistic functioning, but our courts have never embraced that reality.

Allowing use of video and other reporting tools in courts raises legitimate concerns around identifying witnesses and victims; there will always be a need to protect some of those from unreasonable public scrutiny. But allowing journalists to use their tools will give the public far greater access to various types of court proceedings, which in turn will increase understanding of the legal system. How many times have we heard a member of the public speak about an accused person getting off, or receiving a light sentence because of a presumed legal “technicality.” Journalists themselves use the phrase sometimes. Yet, the upholding of a legal precedent, or adherence to legal statutes is not a technicality, but a considered aspect of law.

A wild card in all this is deciding who is a journalist. Courts in British Columbia and Saskatchewan are allowing accredited reporters more use of electronic devices in covering trials. But even with a loosening of the rules in those provinces, reporters still can’t use all their storytelling tools, and are essentially restricted to tweeting small de-contextualized updates.

Others who attend court, and are sometimes described as citizen journalists, are presumably not accredited. Although the proposed CCCT guidelines would allow these folks more latitude, citizen journalists have no formal training and haven’t necessarily committed to any ethical framework and thus are more likely to accidentally spread misleading information.

In any discussion about using electronic devices in courts, organizations could usefully note distinctions between freedom of expression and freedom of the press under Canada’s Constitution. If citizens need to wait until court is over to comment on proceedings, their freedom of expression has not been violated. But press freedom implies access and opportunity report to one’s audience in timely and appropriate ways.

Another important consideration is on how video, audio and photos could be gathered in court by the media, while also maintaining appropriate decorum and safeguarding vulnerable participants in trials and other proceedings. It won’t be an easy issue to resolve, but it would be a progressive step that would ultimately serve both the system and the public.

— Troy Media

Terry Field is an associate professor in journalism and chair of the journalism major in the Bachelor of Communication program at Mount Royal University in Calgary.

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